536 F.

2d 1340

Jesse James ROBINSON, Plaintiff-Appellant,

v.
G. F. McCUNE, Warden, United States Penitentiary,
Leavenworth, Kansas, Defendant-Appellee.
No. 76-1266.

United States Court of Appeals,

Tenth Circuit.
June 25, 1976.

Jesse James Robinson, pro se.

E. Edward Johnson, U. S. Atty., Mary K. Briscoe, Asst. U. S. Atty.,
Topeka, Kan., filed memorandum in opposition of summary reversal
seeking summary dismissal, for defendant-appellee.
Before SETH, McWILLIAMS and BARRETT, Circuit Judges.
PER CURIAM.

At the time this action was commenced, Robinson was a federal prisoner
confined at the United States Penitentiary at Leavenworth, Kansas. In the
district court he contended that he was unlawfully being compelled to serve
sentences imposed for misdemeanor convictions at a penitentiary. This, he
claimed, was in violation of 18 U.S.C. 4083.1 Robinson also asserted that
prison authorities improperly forfeited 176 days of earned good time when his
parole was revoked. The relief sought was in the form of a transfer to a lesser
custody institution and restoration of the forfeited good time.

The district court concluded that the good time forfeiture issue was frivolous
and denied relief. We agree and affirm as to that issue only. There is nothing in
the record to indicate that the forfeiture of good time pursuant to 18 U.S.C.
4165 was other than proper. See, Downey v. Taylor, 327 F.2d 660 (10th Cir.
1964); Hoover v. Taylor, 334 F.2d 281 (10th Cir. 1964); Stanford v. Taylor,
337 F.2d 176 (10th Cir. 1964).

A brief discussion of the factual background is necessary to bring the place of

custody issue into sharp focus. While Robinson was serving two concurrent
five year (felony)2 sentences imposed by the United States District Court for
the Middle District of Alabama, he was charged with two misdemeanor counts
in the United States District Court for the District of New Mexico and was
sentenced to one year on each count, to run concurrently with each other, but
consecutively "to any sentence now serving".

As the completion of the felony sentences approached, Robinson requested that

he be transferred to a lesser custody institution for service of the misdemeanor
sentences. This request was denied. It was the position of prison authorities that
Robinson's sentences had been aggregated and that he was serving one,
combined sentence exceeding one year which he was properly serving at
Leavenworth.

In response to the district court's order to show cause, the government

vigorously maintained that all consecutive sentences, felony or misdemeanor,
could be aggregated for all purposes, including place of confinement. The
government also argued that Robinson had failed to exhaust available
administrative remedies. However, in its Memorandum and Order filed January
20, 1976, the district court rejected the latter argument. The district court also
found that from the Bureau of Prisons' sentence computation records, Robinson
had until March 3, 1976, less any newly accumulated good time, to serve on the
felony sentences and concluded that appellant was not yet ". . . serving a
sentence for 'an offense punishable by imprisonment for one year or less' and
that his consent to imprisonment at a penitentiary is not needed". Finally,
relying on Williams v. Daggett, 377 F.Supp. 1110 (D.Kan.1974), the district
court concluded that Robinson's continued incarceration at Leavenworth would
not materially affect his rehabilitation because he had spent the greater part of
the past five years in a penitentiary serving felony sentences. Judgment was
entered denying all relief and dismissing the action. This appeal followed.

The critical issue in this appeal involves what amounts to a direct challenge to
the apparent practice of the Bureau of Prisons under which all sentences are
aggregated for all purposes. It is clear that Robinson does not specifically attack
the legality of his incarceration per se, but rather the place of his confinement.

The district court's denial of relief seems to have been grounded, at least in part,
on the assumption that Robinson had not yet commenced service of the
misdemeanor sentences. Specifically, the district court concluded that Robinson
was not yet in any type of custody for which his consent was necessary. In view

of the Bureau of Prisons' strong and clearly articulated position with respect to
the aggregation of consecutive sentences, we doubt that Robinson's claim could
be considered premature. See Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20
L.Ed.2d 426 (1968).
8

It is abundantly clear that under 18 U.S.C. 4161 consecutive sentences must

be aggregated for purposes of sentence computation. Downey v. Taylor, supra.
However, basic to the resolution of this controversy is a determination whether
the "single term" concept of 4161, when read together with 4083, may be
construed as a blanket authority to aggregate consecutive misdemeanor
sentences with unexpired felony sentences for all purposes, including place of
confinement.

Not unexpectedly, the government relies strongly on Williams v. Daggett,

supra. In Williams, the court upheld the Bureau of Prisons' practice of
aggregating a consecutive misdemeanor sentence with a prior felony sentence in
order to require service of the misdemeanor sentence at a penitentiary.

10

In 1959, 4083 was amended to permit more flexibility in confining convicted

felons who were sentenced to less than one year.3 Formerly, the length of the
sentence actually imposed was the sole factor in determining whether
incarceration at a penitentiary would be authorized. The amendment allowed
incarceration at a penitentiary only if the offense was punishable by a sentence
in excess of one year. Under the amended statute, persons convicted of a felony
may be required to serve their sentences at a penitentiary regardless of the
actual length of the sentence imposed. However, a misdemeanant under the
amended statute cannot be required to serve his sentence at a penitentiary
without his consent. Dorssart v. Blackwell, 277 F.Supp. 399 (N.D.Ga.1967).

11

In our view, the practice of aggregating consecutive misdemeanor sentences

with prior unexpired felony sentences for purposes of determining place of
confinement is not only unauthorized under 4161, but also does substantial
violence to the clear legislative intent expressed in 4083. The Bureau of
Prisons' authority to aggregate consecutive sentences is plainly limited by
4161 to good time credit computation matters. Any expansion of that authority,
administratively, cannot be reconciled with the clear, unambiguous language of
the statute. Further, the statutory prohibition of 4083 against service of
misdemeanor sentences at a penitentiary, in the absence of consent, seems
absolute. See Brede v. Powers,, 263 U.S. 4, 44 S.Ct. 8, 68 L.Ed. 132 (1923); In
re Mills, 135 U.S. 263, 10 S.Ct. 762, 34 L.Ed. 107 (1890); In re Bonner, 151
U.S. 242, 14 S.Ct. 323, 38 L.Ed. 140 (1894); United States v. Goldstein, 502
F.2d 526 (3rd Cir. 1974) at page 530, n. 4.

12

The conclusion is virtually inescapable that the construction given 4161 by

the government in this case is both overboard and in disregard of the plain,
limiting language of the statute. We also think that any exception to the express
prohibitory language of 4083 based on an individual prisoner's potential for
rehabilitation is a distinctly legislative matter. Accordingly, it is our view that
Robinson cannot be compelled to serve the misdemeanor sentences at a
penitentiary, in the absence of his consent. Although technically the matter is
not before us, the district court's decision in Williams v. Daggett, supra, insofar
as it is inconsistent with this opinion, is disapproved.

13

During the pendency of this appeal the government has advised us that
Robinson was mandatorily released from custody on April 20, 1976. This
development, it is argued, renders the appeal moot. We are further advised that
Robinson will be subject to the supervision of a United States Probation Officer
until September 3, 1976. Presumably, he will also be subject to the usual
conditions of mandatory release.

14

The government's position on the place of confinement issue is clearly

articulated and unequivocal. Accordingly, we think it not beyond possibility
that Robinson could again be confined in a penitentiary-type institution for
service of the balance of his misdemeanor sentences in the event his mandatory
release is revoked. Thus the collateral consequences of the challenged policy
will continue to affect him. We also note that because of the relatively short
time remaining to be served on the misdemeanor sentences, judicial review
would, as a practical matter, be all but foreclosed if he should be reincarcerated.
Accordingly, we think the appeal survives Robinson's release from actual
custody. See Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917
(1968).

15

The judgment of the district court is affirmed with respect to the good time
forfeiture issue and reversed with respect to the place of confinement issue.
Inasmuch as Robinson is presently free from the type of custody under attack
and there is no indication that the government will disregard the views
expressed herein, upon the filing of our mandate, the district court need take no
further action in this case. Of course, the district court may re-open these
proceedings if it later becomes necessary to enforce the prohibition of 4083.

18 U.S.C. 4083 provides that:

"Persons convicted of offenses against the United States or by courts-martial

punishable by imprisonment for more than one year may be confined in any
United States penitentiary.
A sentence for an offense punishable by imprisonment for one year or less shall
not be served in a penitentiary without the consent of the defendant ".
(Emphasis supplied)
2

See 18 U.S.C. 1

P.L. 86-256, 1959 U.S.Cong. and Adm.News, p. 2315